Advertising Not Shown to Deceive Substantial Segment of Audience

This posting was written by Jeffrey May, editor of CCH Trade Regulation Reporter.

Where a motion picture had grossed more than $40 million, 18 affidavits were not enough to show that a substantial segment of the film's audience was deceived by the film's advertising, as required to support a Lanham Act, Sec. 43(a) false advertising claim, according to the U.S. Court of Appeals in Chicago. Summary judgment in favor of the defending film studio was affirmed.

The film, Hardball, was based on a book about a youth baseball league in economically depressed areas of Chicago. The advertising for the film claimed that it was "inspired by a true story." A coach and co-founders of the league contended that a particular character in the film, although purportedly fictitious, was easily identifiable as him, and that the movie portrayed him in a false and negative light. According to the coach, the movie falsely implied that he had a drinking problem and had become a youth baseball coach in order to pay off a gambling debt.

In bringing false advertising claims against the movie studio, the coach presented 18 affidavits from viewers of the film who knew him personally or had personal knowledge of his association with the league. The affidavits all stated the affiants' belief that the main character in the movie was portraying the complaining individual and listed specific reasons for the belief.

In order to establish a claim of false advertising under Sec. 43(a) of the Lanham Act, a plaintiff must show both “a material false statement of fact in a commercial advertisement and that the false statement deceived or had a tendency to deceive a substantial segment of its audience,” the court stated.

Even if the advertisements had contained a material false statement of fact, the coach’s claim would fall short based on his failure to demonstrate that a substantial segment of the movie’s audience was deceived by the advertisements. Most of the viewers of the ads presumably did not have the same personal acquaintance with the coach as the 18 affiants. The affidavits constituted the type of de minimis evidence insufficient to withstand a motion for summary judgment, the court held.

The case is Muzikowski v. Paramount Pictures Corp., U.S. Court of Appeals for the Seventh Circuit, Nos. 05-3004 and 05-3005, decided February 8, 2007 (2007-1 Trade Cases ¶75,587).